On December 14, 2017, the National Labor Relations Board reversed the Browning-Ferris joint-employer policy established in 2015, marking the first of many significant policy changes that are expected from the Board over the next few years. Newly minted Board members Marvin Kaplan and William Emmanuel, whose appointments by President Trump gave the Board its first Republican majority since 2007, joined with Chairman Philip Miscimarra in issuing the opinion in Hy-Brand Industrial Contractors, LTD. And Brandt Construction Co. (Case No. 25-CA-163189).

The 2015 Browning-Ferris decision revised the standard by which the Board finds two companies to be “joint-employers” of employees that performed work for both companies. Traditionally, whether or not an “employer-employee” relationship exists turns on how much control an employer has over its workers. Where there are multiple employers directing or controlling the same workers, determining whether an employment relationship exists between the parties becomes more difficult. For example, if McDowell’s, Inc. owns a fast-food restaurant chain but contracts with a local company that controls the day-to-day operations of a particular restaurant, it might not be immediately clear if either company is the direct employer of the people who work there, or if both companies are joint-employers. Therefore, only one of the companies may be required to bargain with a union or employee representative.

Prior to Browning-Ferris, for two companies to be considered joint-employers, each would have to possess and exercise authority in controlling employees’ terms and conditions of employment. In Browning-Ferris, the Board removed the exercise requirement, bringing companies that simply possessed control over terms and conditions of employment to the table to bargain with the union over those terms and conditions, even if they did not exercise that control “directly and immediately.”
Thursday’s ruling in Hy-Brand Industrial Contractors revived the old rule, reinstating the requirements that an employer must both possess and exercise control to be considered a joint-employer, and that the control must be “direct and immediate.” The Board called the Browning-Ferris standard a “distortion of common law” and “ill-advised as a matter of policy.” The Board argued that the definition of a joint-employer was “confused” and that it produced “wide-ranging instability in bargaining relationships.”
In their dissent, Board members Mark Gaston Pearce and Lauren McFerran harshly criticized the reasoning and result of their colleagues’ decision. They first took issue with the “indefensible” process carried out by the Board in arriving at its decision, arguing that the Board disregarded “basic principles of reasoned decisionmaking” and “longstanding Agency norms in favor of public participation.” They called the Board’s “unwillingness to let the parties and the public participate” in the fact-finding process “particularly curious,” referring to the Board’s abandonment of the usual practice of soliciting briefs from the parties and the public prior to overturning a significant policy decision. “It is reasonable to infer,” they wrote, “that our colleagues do not want to engage the public for fear of what they might learn – namely, that none of the predicted effects of [Browning-Ferris] have actually come to pass.”

The dissenting members further opined that the decision demonstrated “a willful misunderstanding of the joint-employer standard,” and that it “violates the explicit policy of the National Labor Relations Act: to ‘encourag[e] the practice and procedure of collective bargaining.’” It is clear that this decision, by design, will lead to fewer parties at the bargaining table.

Chairman Miscimarra’s term expired on Saturday, December 16, leaving the Board ideologically split 2-2. President Trump has not yet nominated a candidate for his replacement.
You can read the Hy-Brand decision here, and the Browning-Ferris decision here.

Arbitrator Found That Officer David Williams Did Not Use Excessive Force During Arrest

The Massachusetts Supreme Judicial Court (“SJC”) has ruled in favor of the Boston Police Patrolmen’s Association (“BPPA”) and against the City of Boston in a major case that tested the limits of the non-delegable management rights doctrine. In City of Boston v. BPPA, which was decided by a unanimous court on July 12, 2017 (Hines, J. writing the opinion), the SJC affirmed a labor arbitrator’s award ordering the City to reinstate wrongly discharged Boston Police Officer David Williams. The City appealed to the SJC after a Superior Court judge affirmed the arbitrator’s award. Attorney Alan H. Shapiro, a partner with Sandulli Grace, P.C., represented the BPPA in the arbitration and court proceedings with the assistance of Sandulli Grace attorney John M. Becker.

The case began in the early morning hours of March 16, 2009 when Officer Williams and another Boston Police Officer reported to the North End for a traffic dispute. When a St. Patrick’s Day reveler became unruly and refused to leave the street, the other officer attempted to arrest him, but the man began to fight back and resist. Officer Williams came to the assistance of his fellow officer and subdued the unruly gentleman while the man’s two friends attempted to interfere. An initial perfunctory investigation by the Boston Police Department (“BPD”) into the incident did not reach any conclusions, but after the man filed a lawsuit, the BPD resumed investigating, placed Officer Williams on administrative leave in 2011 and eventually concluded that he had used excessive force during the arrest and had been untruthful about his actions. The BPD discharged Officer Williams in January 2012, almost three years after the incident.

The BPPA grieved the discharge under the collective bargaining agreement with the City, in which the parties have agreed that the BPD must have just cause to discharge a police officer and that the ultimate decision on whether the BPD has just cause is for a neutral arbitrator selected by mutual agreement of the City and BPPA. The BPPA argued that Officer Williams used appropriate force under the circumstances and was truthful in reporting his actions. After three days of hearing, the arbitrator rejected the City’s position that Officer Williams had used excessive force, finding instead that Williams had used appropriate force during the arrest and was truthful about his actions during the investigation. The arbitrator also found that the investigation was excessively lengthy and included arbitrary delays. He ordered the City to reinstate Officer Williams with full back pay and benefits, including back detail and overtime pay for the excessively long administrative leave.

The City appealed the arbitrator’s decision to Superior Court and then, after losing there, to the Supreme Judicial Court. The City argued that the non-delegable management rights doctrine, as embodied in the law known as the Commissioner’s Statute, prohibited arbitrators from contradicting the Boston Police Commissioner’s determination that an officer had used excessive force. In effect, the City argued that discipline and discharge were not subject to collective bargaining and that an arbitrator could not decide whether the City had just cause to discharge Officer Williams. The SJC was not willing to extend the management rights doctrine into the “core matters of discipline and discharge”, standards for which have always been subject to collective bargaining.

In reaching its conclusion, the SJC relied in part on a 1998 amendment to G.L. c. 150E, § 7(d), the law that enumerates which laws and regulations are superseded by collective bargaining agreements in the event of a conflict. The 1998 amendment, which was sponsored and supported by the BPPA, with the assistance of attorneys from Sandulli Grace, added the regulations of police commissioners to the list. The SJC found that this amendment gave arbitrators the right to interpret regulations promulgated by the Boston Police Commissioner pursuant to the Commissioner’s Statute and further found that where the arbitrator’s interpretation conflicted with the Commissioner’s, the arbitrator’s must prevail.

The SJC also took the opportunity to criticize the BPD for its handling of the investigation, noting that both the accused police officer and the public were disserved by the mishandling of the case and the lengthy delays in the investigation.

Sandulli Grace congratulates Officer Williams and his family on this victory and also the BPPA and its President, Pat Rose, who have supported Officer Williams throughout this long ordeal.

Sandulli Grace and the Massachusetts Coalition of Police are pleased to announce the second in a series of free trainings for MassCOP members. The second training will be on Tuesday, September 12, 2017 and will be located in Foxborough. The curriculum for this training will be the same as the June 13, 2017 training. We hope that the availability of additional dates and different locations will help more members attend. Please see the attached flyer for registration information.

ANNOUNCING THE SECOND FREE TRAINING
for MASSCOP Local Officials and Members

For the convenience of our members, an additional training date has been added:
TUESDAY SEPTEMBER 12, 2017

Sponsored and run by MassCOP officials and attorneys from Sandulli Grace, P.C., this free session will train you on topics that matter to your members, including:

MassCOP believes in empowering its local unions through education to create a stronger, safer environment for its members. This training will give you tools to enforce your rights and improve your members’ working conditions.

The second training session will be held on Tuesday, September 12, 2017, in the public meeting room at the Foxborough Public Safety Building,
8 Chestnut Street, Foxborough, MA 02035, from 10:00 a.m. – 2:00 p.m. Seating is limited, so please register by e-mailing GCapozzi@sandulligrace.com.

Last week, I was talking with a business agent for a large public sector union which represents thousands of employees in the City of Boston. When our conversation turned to city negotiations, I asked why the Boston teachers couldn’t get a new contract, since the mayor had already settled with the firefighters and police officers (represented by the Boston Police Patrolmen’s Association with the expert legal guidance of my colleague Susan Horwitz). He said that it had something to do with the teachers’ union protecting the jobs of 100 teachers who were in some kind of “rubber room.” Since I knew the “rubber room” refers to a place where New York City dumped lots of teachers awaiting disciplinary hearings for accusations of serious misconduct, I could only conclude that the union must be trying to protect problem teachers. Wanting to find out what is really going on, through a mutual friend, I went straight to the source. Below is a detailed explanation from Richard Stutman, President of the Boston Teachers Union. The bottom line is: the City wants to be able to get rid of many, perhaps 100, perfectly good teachers, many of whom have been rated as not just adequate, but exceptional teachers. Instead, they would rather hire those who are younger, cheaper, and less experienced. All unions, union members, and people who care about maintaining a system where qualified professionals can make a career in public service without fear of being cast aside for no reason, need to support the BTU’s fight for justice for all of its members. Below is a detailed explanation from President Stutman:

-Alan Shapiro

Each year in the Boston Public Schools we have school closings, programmatic readjustments (e.g., a school needs one fewer English Language Arts teacher, two more math teachers, and so on), a school (or two or three) converting to “Turnaround” status (a provision under state law which allows (in some cases, mandates) large staff turnover at a school, regardless of individual teacher competence), or other events, all of which ‘excess’ or push out a teacher or a group of teachers and thrust them into the land of the unassigned. This year we had one school closing, two schools forced into Turnaround status, and another school that underwent a status change (Level 5 to Level 5+) – altogether 150 teachers excessed from these four schools alone. At different changes in a school’s status, no less than 50% of the staff have to leave the school; at yearly intervals staff turnovers of up to 100% can occur. What does this mean?

Simply, because of these school status changes, we have perhaps hundreds of people forced to vacate schools each year – not because of individual performance or anything related to individual conduct or discipline – but because the school is undergoing a transformation ordered by the state or federal government.

So these teachers get ‘excessed’ and in a few cases, schools can take some of them back, either after or without an application process. In the vast majority of cases, those excessed become unassigned teachers looking for a permanent placement. This year there are 350 excessed teachers currently without an assignment. Regardless of how they got into this status, they are, as measured on the performance scale , similar to all other teachers in the system – no better, no worse.

A little background on the current group of 350 unassigned teachers. They were noticed in February and have from February to September to apply for a position. Most diligently apply for placement where there is a suitable position in their field.

Some have no place to apply. They may, for example, be in an ‘exotic’ field, teaching a subject that is not widely taught. Or they may teach a not-so-exotic field, but in a grade level where that subject is not needed. While most of the 350 will predictably find a position by September, some will not, and they’ll become “SPC’s” or people who will be assigned to a “Suitable Professional Capacity” on the first day of school.

People assigned to an SPC role get full pay and benefits and remain eligible to seek and accept any posting that opens up in the school system. While unassigned to a ‘real’ position, they work in a school in a variety of capacities: as a second teacher, teacher’s helper, paraprofessional, small group instructor, or in a similar support role. This year there are around 45 SPC’s. Next year, given the inevitable whittling down of the 350 unassigned now, there will be another 50 to 75 SPC’s (but we cannot be sure how many) added to the group of current 45 SPC’s. Let’s assume there will be 100 or so SPC’s next year, as some of the current SPC’s will undoubtedly resign, retire, or naturally find a position.

Here, then, is the issue:

Given the above, there is a steady, though fluctuating, core of 50 to 100 SPC’s, who remain in that status each year, costing the district annually $5 to $10M. This year, 2/3 of these teachers have been rated proficient or exemplary. Some have been SPC’s for a few years, some for a year. To a person, they want to get out of the status, obtain a ‘real’ position, and get on with their careers. But they are not guaranteed placement as principals retain the right to say ‘no’ to any particular applicant.

Some of the SPC’s apply to many schools looking for virtually anything, others are more selective. Unless an SPC finds a school and is accepted there, s/he remains in this status without a time limit.

Why aren’t these folks laid off? Under the BTU contract each SPC is guaranteed this status (full pay and benefits) for years without limit. This guarantee is seniority-based and means that the SPC can continue in the status provided there is a person in the same subject area who is junior to the SPC, even if that junior person has a ‘real’ position. There is no time limit.

Under the state law, the SPC has a right, as well, to continue in the same status – notwithstanding the provisions of the BTU contract — provided a non-permanent or provisional employee is working in that subject area. This adds to their protection.

Bottom line: the SPC has a right to stay in that position indefinitely, even without a real spot to claim.

From our point of view, these SPCs should be working in productive, real positions. Each has been trained and vetted, each has been rigorously evaluated under a new state Performance Evaluation system that the district has agreed to, and each is in his/her predicament through no fault of his/her own. Each has undergone anywhere from 30 to hundreds of hours of yearly Professional Development. None of those in this capacity are there as a result of any disciplinary proceeding. This is no rubber room.

(There are teachers awaiting disciplinary proceedings, and this small group is sent home to await the disciplinary process. None of these is an SPC.)

From the school district’s point of view, a principal should have the right to hire any person s/he chooses and these excessed teachers (SPC’s) are never forced into a school. The normal teaching turnover is approximately 500 teaching positions per year. The existence of SPC’s adds another 50 to 100 positions that have to be filled. This year the department has hired 600 new teachers.

We’d like to see the district put the SPC’s to work at their full capacity as teachers in the fields in which they are fully trained and qualified, and save anywhere from $5-10M per year. The school district, hiding behind the ideology of “not-forcing-a-person-into-a-position,” has the cash to withstand the cost of paying the unnecessary $5-$10M in yearly costs. We’d like to see the money used elsewhere.

Final point, in a circular twist to all of this – if the school department could redistribute the $5 to $10M that is spent on this issue, it would allow schools to add back teaching positions and cut back on the programmatic excessing that helps create the SPC problem in the first place.

In negotiations, we seek to keep the SPC’s employed in productive capacity until a ‘real’ vacancy opens up. The school district wishes to put a time limit on each SPC’s status and have us waive their contractual and statutory rights to employment. If that were to happen, eventually, dozens or even hundreds of fully qualified, experienced teachers would end up unemployed, while the school district hires new, generally inexperienced, and much cheaper teachers (starting teachers make about 35% less than those at the top of the salary schedule) to replace them.

The Massachusetts Supreme Judicial Court issued a decision today (May 16th, 2017) that will further protect workers who are injured on the job and ensure that they continue receiving their workers’ compensation benefits even if they are suspended. The SJC overturned the decision of the Superior Court and reinstated the original ruling from the Department of Industrial Accidents, granting a former Boston EMS worker his workers’ compensation benefits. The case was handled by John Becker, Of Counsel to Sandulli Grace, he received assistance from former Sandulli Grace Attorney Jamie Goodwin who argued the case below.

The plaintiff in the case, Brian Benoit, had been an EMT and paramedic with Boston EMS for almost 20 years when he injured his ankle while transporting a patient. Unable to work, he filed for and received workers’ compensation benefits for almost a year under the Massachusetts workers’ Compensation Statute. Mass. G. L. c. 152. Boston EMS halted his workers’ comp payments in August of 2012, arguing that injury was not accidental. Benoit seeking to have his benefits reinstated, filed a complaint at the DIA in October of 2012. Shortly thereafter Benoit was indicted in an unrelated matter, and Boston EMS promptly placed him on suspension in accordance with G. L. c. 268A § 25. Under G. L. c. 268A § 25 public employees are barred from receiving compensation while on suspension. In addition to their argument that the injury was not accidental, Boston EMS also argued that Benoit’s workers’ compensation benefits constituted compensation for services and were therefore not obligated to pay them under the statute. The DIA ruled that Boston EMS had impermissibly denied Benoit his rightful workers’ comp benefits and ordered that they be reinstated. Boston EMS refused to comply with the order and appealed the decision in Superior Court, Benoit also filed an action in Superior Court to inforce the decision of the DIA.

The Superior Court determined workers’ compensation payments constituted compensation and granted the Motion to Dismiss brought by Boston EMS, Benoit appealed that decision. After pleading guilty and subsequently resigning from Boston EMS, Benoit refiled an action in Superior Court alleging that since he was no longer suspended, the suspension statute should no longer apply. The Superior Court disagreed with him once again, stating that since he was suspended at the time of his resignation he was still considered to be suspended. Benoit consolidated both of his appeals and the SJC removed the case from the Appellate court. While the SJC denied Benoit’s first two claims, they agreed with him that the workers’ Compensation Statute was not proscribed by the suspension statute.

workers’ Compensation in Massachusetts was originally enacted in 1911, and the statutory scheme protects workers who are injured while on the job. It allows the injured party to remain financially stable while protecting the employer from prohibitively costly settlements and judgments. When an employee pursues a workers’ compensation claim, they forfeit their right to sue their employer for damages. The no-fault system creates certainty for all parties, the injured employee knows the benefits they will receive and the employer knows what they are liable for. The act also mandates that every employer obtain workers’ compensation insurance from an insurer who will make the payments or obtain licensing as a self-insurer. If the employer chooses a third-party insurer, that insurer will be the one to pay out the workers’ compensation benefits. However, if the employer chooses to be self-insured, as Boston EMS did, they will be liable for all workers compensation payments. Employees can also opt out of the system in order to retain their right to sue, but they must do so at their time of hire. An injured employee will receive medical costs and weekly payments based on salary for a period of time depending on the nature and seriousness of their injury. The SJC decided this case on whether those payments consisted of compensation for services rendered.

While the court acknowledged that compensation is usually interpreted broadly, they recognized the limitations in G. L. c. 268A § 1(a) which defines compensation as any money, thing of value or benefit conferred or given to a person in return for services rendered. The restriction of ‘in return for services rendered’ became the deciding factor in this case. The SJC determined that workers’ compensation benefits are not conferred upon an injured employee for services rendered but because the employee waives the right to sue in order to guarantee benefits when he or she is injured. They differentiated the workers’ compensation act from other forms of compensation such as sick pay and unemployment insurance. The SJC also differentiated workers compensation benefits as they were outside the purview of the employer-employee relationship and instead based on the relationship between the employee and the insurer. The court specifically discussed the differences between workers’ compensation benefits and unemployment benefits. Unlike workers’ comp, the employee is not required to give up either their rights or money to receive unemployment. Unemployment benefits serve as a recognition of the services the employee performed while working and are directly tied to the employer who fund the unemployment insurance mechanism.

This ruling provides substantial protections for workers who are hurt on the job. Employer’s and insurance companies will be barred from denying payments due to a suspension stemming from misconduct. Employees will have the peace of mind that even if they are suspended while they are out of work they are still entitled to receive their workers’ compensation benefits.

MassCOP believes in empowering its local unions through education to create a stronger, safer environment for its members. This training will give you tools to enforce your rights and improve your members’ working conditions.

The first training session will be held on Tuesday, June 13, 2017, at the Southbridge Police Department, 1 Mechanic Street, Southbridge, MA, from 10:00 a.m. – 2:00 p.m. Seating is limited, so please register by e-mailing GCapozzi@sandulligrace.com.

Town Cannot Use Lack of License to Carry Firearms as Excuse to Avoid Complying with Arbitrator’s Award

An Essex Superior Court judge ruled late last month that the Town of Middleton, Massachusetts must reinstate a wrongfully-terminated police officer, even though the Middleton Police Chief has suspended the officer’s license to carry a firearm (“LTC”). The Superior Court judge’s ruling recognizes that allowing a police chief’s revocation or suspension of an LTC to prevent reinstatement after a lawful order of an arbitrator or other tribunal would effectively render the collectively-bargained protections against unjust discipline null and void. (Click here for the text of the Superior Court ruling.)

The case involves Brian Kelley, a veteran Middleton police officer who became involved in a domestic dispute in Maine on May 1 2013 that resulted in criminal charges against him. While the criminal case was pending the Middleton Police Chief exercised his discretion under G.L. c. 140, § 131 to suspend Kelley’s license to carry a firearm. Because the collective bargaining agreement between the Town of Middleton and the Middleton Police Union made the possession of an LTC a condition of employment, Kelley was unable to work and his employment was eventually terminated after the Town failed to reappoint him to his position. Subsequently, all the charges against Kelley were dismissed and he and his Union, the Middleton Police Benevolent Association, MassCOP Local 292, asked for him to be returned to his position. But the Chief and the Town refused to take Kelley back.

The Union filed a grievance on Kelley’s behalf under the CBA, which eventually reached a neutral arbitrator. MassCOP assigned Attorney Joseph Sandulli of Sandulli Grace, P.C. to represent the Union in the matter. Arbitrator Mary Jean Tufano ruled on November 20, 2014 that the Town did not have just cause to discharge Kelley. As a remedy, the arbitrator ordered the Town to reinstate Kelley with full back pay and benefits. In her decision, Arbitrator Tufano explained that while she had no authority to give Kelley back his LTC, she had the power and authority to make him whole for the Town’s violation of the CBA and that reinstatement was an essential element of the make whole remedy. She interpreted the entire CBA – including the remedial authority granted to her by the parties – to require this result. She noted that in light of the Chief’s unique discretion regarding LTCs, literal enforcement of the “LTC as condition of employment” language would mean that the Police Chief could effectively terminate the employment of any employee without just cause merely by suspending or revoking his or her LTC. She also noted that the reason given by the Police Chief for suspending the LTC – the pending criminal charges – no longer existed.

The Town of Middleton refused to obey the decision of the arbitration and instead filed a petition to vacate the arbitration award pursuant to G.L. c. 150C. MassCOP assigned Attorney John M. Becker, of Sandulli Grace, P.C. to represent the Union on the appeal. The case came before Judge Peter Lauriat in Essex Superior Court, who after briefs and oral argument, on February 28, 2017 denied the Town’s petition to vacate and instead confirmed the award. In ruling in the Union’s favor, Lauriat rejected the Town’s arguments that reinstating Officer Kelley violated public policy and would require the Town to violate the law. Instead of complying with the arbitration award, the Town on March 8, 2017 filed a motion asking the Superior Court to reconsider its decision, which is pending at this time.

Significant changes to the state’s public records laws went into effect on January 1, 2017. The changes, which were passed by the Legislature in June 2016, clarify and elaborate upon the rights and obligations of the public entities in control of public records and the individuals and organizations seeking access to them. In many ways, the laws strengthen the power of citizens to gain access to public records in part by increasing the punishments for public entities that ignore public records requests or unreasonably delay in responding to them. In response to complaints that public entities have been gouging the public in assessing unreasonably high fees for producing documents, the new law sets strict limits on fees and requires the waiver of fees where the public entity did not follow the time limits or otherwise violated the law. The law moves the enforcement provisions from the original public records provision, G.L. c. 66, § 10, into a much expanded new section, G.L. c. 66, § 10A. Section 10A sets out in detail the legal standards and procedures for members of the public who have not been given the public records they requested, or only obtained the documents after long delays. Section 10A strengthens the role of the Supervisor of Public Records (who is located in the Secretary of State’s office) and the Attorney General in enforcing the law. It also permits the award of attorney’s fees and punitive damages in certain cases. The amended law also requires the holder of public records to communicate with the requester in writing to explain claims of exemption, the amount of fees or the reason for any delay in providing the documents.

The statute requires each public entity to assign a public records access officer who will keep track of all requests for records and oversee the responses to those requests as well as compile a detailed annual report for the Supervisor of Public Records. The statute states that electronic delivery of documents is preferred where feasible. It allows the public entity to withhold documents where: (1) the request is one of many by the same requester and is designed only to harass and intimidate and has no public purpose (a determination ultimately made by the Supervisor of Public Records) or (2) the requester has failed to pay the fees for prior requested documents. The statute also distinguishes between public records requests made for purposes of informing the public and those made with a commmercial or profit-making reason. While most of the amendments strengthen access to public records, there are also a few additions to the list of exempt documents, including those containing cyber security information and also the personal e-mail addresses of certain public employees.

Specific changes include the following:

New exemption: records relating to cyber security

New exemption: personal e-mail addresses of employees of the judicial branch and unelected employees of the Commonwealth, its agencies or its political subdivisions, or their family members.

Establishes a Public Records Assistance Fund, funded by punitive damages awards and other sources, administered by the office of information technology, to provide grants to municipalities to “foster best practices for increasing access to public records and facilitating compliance” with the law.

Requires the Supervisor of Records to create and distribute forms, guidelines and reference materials to aid the public in getting access to public records.

Requires state agencies and muncipalities to designate a records access officer or officers, who are responsible for assisting the public in obtaining documents.

Establishes that providing the requested documents by electronic means is preferred, unless the record is not available in electronic form or the requester does not have to ability to receive the documents in that form.

Any public records request must reasonably describe the public record sought.

The public entity must respond within 10 business days with either the documents requested or a detailed explanation for the delay or exemption; if there is no response within 10 days, then the public entity cannot charge a fee for the documents.

Limited extensions of time of five additional days for the Commonwealth and 15 additional days for municipalities are permitted. For good cause, the Supervisor of Public Records may grant an additional, one-time-only 20-day extension to the Commonwealth or 30 business days for a municipality. The requester can agree to an extension of any length.

The public entity must provide any non-exempt documents that are within its possession, custody or control.

If a fee is permitted and the public entity requests a reasonable fee, the public entity can refuse to provide the documents until it receives the fee.

In a major change from the earlier fee provisions, the Commonwealth and its agencies cannot charge a fee for the first four hours of work in responding to a request. For muncipalities with a population of 20,000 or more, the free period is two hours. Smaller municipalities may charge for all the time required to process the request. After the applicable free period, the public entity can charge up to $25 an hour for time spent on the request (more if approved by the Supervisor of Public Records after a detailed showing of need). The charge for black and white copies is limited to five cents per page.

Enforcement: Whereas under the prior law, the requester could only ask the Supervisor of Public Records to determine whether the requested record was public, the statute now gives the Supervisor the power to make “a determination whether a violation [of the public records law] has occurred.”

If the Supervisor of Public Records finds a violation of the law, it may notify the Attorney General, who may take any steps to ensure compliance, including filing a civil action.

No matter what steps the Supervisor of Public Records or Attorney General do or do not take, the requester has the right to file a civil action to enforce the law in the Superior Court. The enforcement provision gives the court the power to issue injunctive relief and specifically incorporates the presumption that every record sought is public, which places the burden on the public entity to prove that it has complied with the law.

If the requester files a civil action and subsequently prevails (and prevailing includes obtain the requested documents, even without a court order), there is a presumption in favor of an award of attorney’s fees and costs.

To overcome the presumption of attorney’s fees, the agency or municipality must prove it comes within a specific exemption (i.e., the Supervisor of Public Records found there was no violation of the law; the entity reasonably relied on a published court or attorney general opinion; the intent of the request was to harass or intimidate, or the request was for commercial, not public purposes).

If the Superior Court awards attorney’s fees, then it must order the public entity to waive any fees. If the Superior Court does not award attorney’s fees, it still may order the entity to waive fees.

If the requester obtains a court judgment in his or her favor and has shown that the public entity did not act in good faith, then the court may assess punitive damages against the Commonwealth or municipality of between $1000 and $5000, with the money to be placed in the Public Records Assistance Fund.

Notes for employees and unions:

Because of the fee provisions of the public records law, we advise our public employee union clients to request records that are relevant and necessary to their role as exclusive bargaining agents under G.L. c. 150E, § 6. The obligation to provide such information is an important aspect of a public employer’s obligation to bargain in good faith with its employee unions. If the parties have a past practice of providing documents without charge, then charging a fee for documents requested pursuant to Chapter 150E would be a unilateral change in working conditions and a basis for filing an unfair labor practice charge. A public records request would be necessary when seeking records in the custody of public entities other than the public employer with whom the union has a bargaining relationship.

Personnel records are exempt from disclosure as public records, but an individual employee has a right to see his or her personnel record under G.L. c. 149, § 52C. Employee personnel records and internal investigation records may also be available to unions pursuant to G.L. c. 150E, § 6, although redaction may be required in some cases.

Criminal defendants may have a constitutional right to certain portions of otherwise exempt records, such as personnel files of arresting police officers and internal affairs investigations of those officers, under Commonwealth v. Wanis, 426 Mass. 639 (1998), upon a specific showing that the records are likely to contain exculpatory information.

The exemptions to the Public Records Law only determine what documents public entities are permitted to withhold from public records requesters. It arguably does not prohibit public entities from disclosing exempt documents. Other laws and statutes, including laws creating certain privileges and the law prohibiting invasion of privacy, may be invoked to prevent a public entity from disclosing a document that is not a public record within the meaning of the law.

You may recall my August 8, 2016 blog post announcing an arbitrator’s award that granted back benefits to two full-time Rockport police officers who also serve in the National Guard. The Town had a practice of paying the officers their full salaries when they went to trainings on Cape Cod for several years when the interim police chief – on a complete misreading of the relevant statutes – concluded it was illegal to do this and began deducting their National Guard stipends from their pay. The local police union, supported by the Massachusetts Coalition of Police (MassCOP), fought the Town’s move; MassCOP assigned me (John M. Becker of Sandulli Grace, P.C.) to provide legal services to the officers and their local union.

The arbitrator ruled against the Town and ordered the officers to be paid as before. The decision even received some media attention – Michele McPhee discussed the case on her radio program. For a short time, it seemed as if Rockport was back on the right track.

According to the collective bargaining agreement between the Town and the Union, arbitrators awards are “final and binding”, but less than 30 days after the arbitrator’s award, the Town filed a petition in the state Superior Court asking a judge to overturn the decision because, it argued, the arbitrator had “exceeded his authority” and the award required the Town to violate the law.

Once again, MassCOP authorized Sandulli Grace to represent the local union – this time at the Superior Court. We recently filed a response to the Town’s appeal on behalf of the Rockport police union arguing that the appeal was frivolous and has no legal basis. We asked the Court to not only confirm the award but also require the Town to pay the Union’s legal fees in the frivolous appeal.

In this time of uncertainty and change, when so many misguided people here and abroad seek to solve problems through hatred and violence, we have to rely on the men and women who have chosen to serve in America’s volunteer military more than ever. The police officers in this case are full-time members of the Rockport police force and they have made significant sacrifices to serve in the National Guard. The Town of Rockport’s former practice of not deducting the National Guard stipends from their pay for attending mandatory trainings was the right thing to do. When the Town decided to cut officers’ pay for serving in the military, that was the wrong thing to do. Fortunately, the officers were part of a Union that had a collective bargaining agreement with the Town. That agreement gave them the right to challenge the Town’s change in practice before a neutral third-party arbitrator, who quickly realized that the Town’s position was wrong and no law prevented it from continuing to do the right thing.

It should have ended there. The Town should have accepted the “final and binding” ruling of the arbitrator and moved on. What possessed the Town and its labor counsel (from KP Law, formerly Kopelman & Paige, in Boston) to continue to expend time and money on depriving these hard-working officers of income? Is it simply about saving money? Because the amount they are saving by deducting the National Guard stipends is only a miniscule fraction of the Police Department budget. Is it a case of arrogance – they’re so sure they’re right that they won’t accept anyone telling them otherwise? I don’t have the answers. All I know is that these officers deserve better – their local union knows it, MassCOP knows it, and we at Sandulli Grace know it – and we will continue to fight on their behalf for as long as necessary.

Susan Horwitz, a senior partner at Sandulli Grace, P.C., has been awarded the 2016 Cushing-Gavin Award for Union Attorneys, the highest honor bestowed upon members of the Massachusetts labor-management community. She will receive the award at the Labor Guild’s 50th Anniversary of the Cushing-Gavin Awards Dinner on December 2, 2016 at the Boston Park Plaza.

For 70 years, the Labor Guild has advanced the interests of workers and advocated better problem solving communication between representatives of labor and management throughout New England. In 1952, the Guild started offering classes to workers through its School of Industrial Relations, now located at 66 Brooks Drive in Braintree. In the late 1960’s, the Guild expanded its membership base by launching a tripartite labor relations awards program to recognize distinguished representatives of the labor, management and neutral/auxiliary communities. These awards are for excellence in labor-management relations “exemplifying moral integrity, professional competence and community concern.” For the past 50 years, select individuals who meet these high standards have been honored at the Guild’s Cushing-Gavin Awards Dinner.

Those familiar with Susan and her career can easily attest to how she exemplifies the required traits of a Cushing-Gavin Awardee. Before going to law school, she developed a foundation in labor relations by spending 5 years with the U.S. Labor Department in New York City. She then attended Northeastern School of Law when she began her work with Sandulli Grace as a coop, becoming its 4th attorney in 1984 and a partner in 1988. Sandulli Grace now has 13 attorneys and has always specialized in representing unions and employees exclusively.

Susan has been an exceptional advocate for the Boston Police Patrolmen’s Association (BPPA), the Massachusetts Coalition of Police (MCOP), the International Brotherhood of Electrical Workers (IBEW) Local 1228 in the broadcasting industry and numerous other local unions and their members across Massachusetts. She is held in high regard by all of the Sandulli Grace clients not just for her tireless work on their behalf, but also for her utmost passion in doing so.

The Cushing-Gavin Awards Dinner has grown to be the largest annual event in the Boston labor-management community. Please consider joining us in supporting the Labor Guild and honoring Susan Horwitz and the other Cushing-Gavin Awardees on December 2, 2016 at the Boston Park Plaza. It is also a chance to meet many old friends and establish new ones as we all strive to improve our working lives. (Further information regarding the Dinner and tickets can be found HERE)